Archive for month: August, 2012

One of the most frustrating things for many veterans under the current VA service connected disability rating schedule is the attempt to obtain a 100% disability rating, particularly where a veteran has multiple disabilities. As discussed in a previous post, combining two or more disabilities is a complicated process in which 50% plus 50% does not equal 100% but, rather, 75%. In fact, the closer a veteran gets to a 100% disability rating, the harder it seems to be to obtain one. For example, once a veteran is rated 80% disabled, each additional 10% disability only adds 2% to his total rating rather than an additional 10%.

Meeting the criteria for a 100% rating of the ratings schedule, or combining multiple disabilities to obtain a 100% rating can be very difficult. Failure to meet those criteria, however, does not mean that a veteran is not totally disabled. For this reason, the VA regulations provide for an alternate route to a total disability rating—individual unmployability.

When a veteran’s service-connected disability or disabilities prevent him from being able to secure and follow substantially gainful employment, he is entitled to a total disability rating based on individual unemployability (TDIU or IU). In determining whether a veteran qualifies for TDIU, the VA should consider not only whether a veteran is capable of getting a job but also whether he is capable of keeping a job. Furthermore, any job that the veteran is able to secure and follow must be a job which is “substantially gainful.” In other words, the job that the veteran is able to do must provide income which places the veteran above the poverty level. Of note, “substantially gainful employment” does not include working in a sheltered environment such as a veteran’s own family business or a sheltered workshop.

Under the TDIU regulation, a veteran should automatically be considered for TDIU when there is evidence that his disabilities keep him from working and he has a qualifying disability rating. Under those circumstances, the veteran should not even have to ask to be considered for TDIU, but we find that the VA often fails to make a determination as to TDIU unless it is specifically requested by the veteran. It is important to note that the VA will probably assign the date that the veteran asks for this increased rating as the effective date for TDIU. Be aware, however, that that you may be entitled to an earlier effective date if you became unable to work earlier than the date that you actually requested that entitlement.

For purposes of the VA regulations, a qualifying rating is either a single service-connected disability with a 60% rating or multiple service-connected disabilities and a total rating of 70%. This is a simplified definition of a qualifying rating as there are many exceptions to this basic rule. For example, if the veteran injured his back and knees in a single accident, these could be considered a single disability. Similarly, if the veteran has multiple injuries incurred in a single combat action, these, too, could be considered a single disability.

Regardless of the schedular rating that a veteran has been assigned for his disability or disabilities, if those disabilities prevent the veteran from earning a living wage, he is entitled to a total disability rating based on individual unemployability.

Post-traumatic stress disorder (PTSD) is a condition that many veterans have heard of, but do not quite really know what it is, or whether or not they have it. It has been my experience that PTSD is commonly misunderstood and underestimated by veterans and the VA alike. My hope is that this post will help to explain exactly what PTSD is and also give information regarding some of the factors the VA will consider when determining whether or not a veteran has PTSD in the first place.

PTSD is a mental health condition, classified as an anxiety disorder. The National Center for PTSD says that PTSD can develop after a traumatic event, after which a person experiences a stress-related reaction that does not go away after time. According to the Mayo Clinic, PTSD is triggered by a terrifying event, and the symptoms are generally grouped into three types: intrusive memories, avoidance and numbing, and increased anxiety or emotional arousal (hyperarousal). In the medical literature, PTSD is sometimes classified as acute (symtpoms last less than 3 months), chronic (symptoms last 3 months or longer), or delayed onset (at least 6 months have passed between the traumatic event and the onset of the symptoms).

As stated in a previous post by my colleague, PTSD can be caused by many experiences, including combat, in-service personal assault or harassment, military sexual trauma, or any other traumatic event that satisfies the criteria. It is important to note that not everyone who is exposed to trauma will develop PTSD, in fact, most do not. However, for those who do, the PTSD is often life altering.

In order for the VA to recognize a veteran’s PTSD, the diagnosis must be provided by a qualified medical professional. Even though many veterans are treated by VA or private therapists who are not doctors or psychologists (i.e. licensed mental health social workers, licensed counselors, etc.), the VA will not accept their opinions initially diagnosing PTSD. For VA purposes, a qualified medical professional is either a medical doctor or a PhD in psychology.

With that being said, once a veteran files a VA claim for PTSD, even if the veteran has a valid diagnosis of PTSD from a qualified medical professional, the VA is still going to require that the veteran undergo a Compensation and Pension Examination in order to verify the diagnosis and assess the severity. This is normally the case, even if a VA doctor has diagnosed the veteran with PTSD.

The VA uses the criteria from the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) to evaluate whether there is a valid diagnosis of PTSD. The DSM-IV lists six criterion for a diagnosis of PTSD. In the VA context, the criterion is evaluated as follows:

1. CRITERION A: The Veteran has been exposed to a traumatic event where both of the following were present:

a. The Veteran experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.

2. CRITERION B: The traumatic event is persistently re-experienced in 1 or more of the following ways:

a. Recurrent and distressing recollections of the event, including images, thoughts or perceptions

b. Recurrent distressing dreams of the event

c. Acting or feeling as if the traumatic event were recurring; this includes a sense of reliving the experience, illusions, hallucinations and dissociative flashback episodes, including those that occur on awakening or when intoxicated

d. Intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event

e. Physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
or

f. The traumatic event is not persistently re-experienced

3. CRITERION C: Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by 3 or more of the following:

a. Efforts to avoid thoughts, feelings or conversations associated with the trauma

b. Efforts to avoid activities, places or people that arouse recollections of the trauma

g. Sense of a foreshortened future (e.g., does not expect to have a career, marriage, children or a normal life span)
or

h. No persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness

4. CRITERION D: Persistent symptoms of increased arousal, not present before the trauma, as indicated by 2 or more of the following:

a. Difficulty falling or staying asleep

b. Irritability or outbursts of anger

c. Difficulty concentrating

d. Hypervigilence
or

e. No persistent symptoms of increased arousal

5. CRITERION E: Duration of symptoms

a. The duration of the symptoms described in Criteria B, C and D is more than 1 month

b. The duration of the symptoms described in Criteria B, C and D is less than 1 month
or

c. Veteran does not meet full criteria for PTSD

6. CRITERION F: Clinically significant distress or impairment

a. The PTSD symptoms described above cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

b. The PTSD symptoms described above do NOT cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
or

c. Veteran does not meet full criteria for PTSD

All six of the DSM-IV criterion must be satisfied in order for a diagnosis of PTSD to be valid. If this threshold is not met, the VA will decide that the veteran does not have a valid claim for PTSD. Therefore, it is important that all symptoms be thoroughly documented, that veterans are diagnosed by qualified medical professionals (as defined by the VA), and that veterans be open and honest with their treating providers so that the VA has a true picture of the way the PTSD has forever impacted their lives.

PTSD is the only mental illness to have its own VA regulation. For a veteran to receive service connected compensation for PTSD, he must show three things. First, he must have a current diagnosis of PTSD. Second, he must provide credible supporting evidence of a stressor while the veteran was in service. Third, he must have a medical nexus (link) between the PTSD and what happened in service.

The diagnosis of PTSD must have been provided by a qualified medical professional, which is either a medical doctor or a PhD in psychology. Even though the VA uses licensed mental health social workers treat veterans—not to mention that these medical professional are competent and well trained— the VA will not accept their opinions diagnosing PTSD.

Regarding the credible supporting evidence of a stressor, the veteran has to provide evidence in addition to his testimony of what happened in service. This evidence can be in the form of service records, buddy statements, newspaper reports, unit records— anything that supports the stressor that the veteran talks about.

As far as the nexus is concerned, it has to be provided by a doctor and the doctor must link the PTSD to the verified stressor. This link is a little more complicated than it seems because most veterans have multiple stressors. Let me give you an example, where a veteran had two stressors in service, one verified and one not. For the first stressor, the veteran was in a car accident in service in which his best friend was killed. There are service records and hospital records backing up this stressor. The second stressor was when the vet was in his bunk and some fellow soldiers came in the room and threw a grenade at him. The grenade was a dummy but the veteran did not know that and he still has nightmares about it. There is no independent verification of this stressor. For the veteran to receive service connected compensation for his PTSD, the doctor would have to relate his PTSD specifically to the car accident in service because that is the only stressor with independent verification.

There are certain situations where the VA does not make the veteran show independent verification of a stressor. If a veteran was diagnosed with PTSD in service then the VA will not ask for proof of a stressor. If the veteran can prove that he was in combat and that his PTSD is related to combat then he does not have to provide the VA independent verification of a stressor. Similarly, if the veteran was a POW then he does not have to provide verification of a stressor if the stressor is related to being a POW.

Recently, the VA added a new presumption where the veteran does not have to show verification of his stressor. If a VA doctor finds that the veteran’s PTSD relates to fear of hostile military or terrorist activity then the VA will not require independent verification of the stressor. Of course, there are a couple of catches here. It has to be a VA doctor to do this—if the veteran has a diagnosis of PTSD related to fear of hostile military or terrorist activity from a private doctor then the VA is still going to require the veteran to show proof of the stressor. Another problem with this rule is if the VA doctor finds that the veteran does not have PTSD but depression or anxiety or a mood disorder that is related to fear of hostile military or terrorist activity the VA will require the veteran to show proof of the stressor. This rule only works if the VA doctor relates PTSD to a fear of hostile military or terrorist activity.

Another situation where the VA has reduced the burden of proof on the veteran is where the stressor involves an in-service personal assault. The VA has admitted that instances of assault in service are both underreported and under recorded, in that most people are too embarrassed to report these attacks and then even where someone did report it the report is never officially filed by the authority responsible for doing so.

Most commonly, an in-service personal assault is a rape or a sexual assault. This type of claim is typically referred to as a military sexual trauma or a MST. But an in-service personal assault can take other forms—being physically assaulted or even verbally harassed.

In these situations, the VA will look for evidence outside the veteran’s service records such as records from law enforcement, rape crisis centers or pregnancy tests. The VA will also accept evidence of behavior changes such as statements from relatives as to how the veteran was before service compared to how he was after service.

Testimonials

Dear Carol, …on behalf of my son, my wife, and myself…THANK YOU so wholeheartedly. To you and your friendly staff in handling our not so easy Social Security and Veteran Administration claims. We have been greatly satisfied and rewarded with your…

Diego A.

I know that my husband got his 100% because of the wonderful persistence of Carol and all she did and for her big and wonderful loving heart for these forgotten veterans. There are really no words to express our gratitude for your firm, especially Ca…

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Omeaterance Mewborn

My name is Vickie Clark. My husband, Robert Clark, was diagnosed with liver cancer back in March 2009. He was a Vietnam veteran. I had been telling my husband back in 1992 to apply for VA benefits but he would not do anything. Finally, when he got di…

Vickie C.

Mrs. Ponton words cannot describe what I feel this moment!! I’ve waited TWENTY TWO years for this!!!

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Atty. Hill, I want to let you know how much I really appreciate your diligence and patience concerning this matter. It was very stressful and frustrating for me and I did not want it to go on any longer than necessary. Without your assistance this ma…

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Please let me express my sincere gratitude and appreciation for all the hard work you and your staff provided me during a difficult time in my life. I want you to know that you have inspired me with confidence and understanding of my situation. Also,…

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